LAW REPORTS.

Dominion, Volume 2, Issue 447, 4 March 1909, Page 9

LAW REPORTS.

SUPREME COURT. CLAIM FOR WRONGFUL EXCAVATIONS. MRS. W. H. FIELD V. ALLEN ' MAGUIRE. HOW SHOULD THE DAMAGES BE ASSESSED? ' Argument with regard to tho method which should be employed in assessing the damages to be awarded in the case of Mrs. W/.H. Field, wife of W. H. Field, M.P., versus Allen'Maguire, contractor, was heard before Mr. Justice Cooper yesterday. ' Mr. Bell, K.C. (with him Mr. Luckie), appeared on behalf of plaintiff, and tho At-torney-Geueral, Dr. Findlay, K.C. (with him Mri Fitzgibbon), for defendant^ : ' This was an action for £1500 damages for loss occasioned to plaintiff's property through the removal by defendant of portions of a bank at tho rear of the noncommercial Hotel. After the action had been' partly heard, it was agreed to withdraw the caso from the jury, and refer the question as to tho quantum of damages to be allowed to two arbitrators, and an umpire, upon a basis of assessment to be laid down by the Court. . Mr. Bell, 1 on behalf of-plaintiff, stated that' he. and counsel for defendant , weroagreed with regard to the main propositions of law bearing on such cases. The only difference between them was as to how tho damages were to be assessed. It was clear that the depreciation in the present selling valile of the property, and any prospective injury which might accrue, could only be the subject of separate causes or action. Plaintiff claimed not merely that portion of her land had slipped away, but that the property had been depreciated ill value by the actual disintegration of the soil, which constitutes it. It was contended that the arbitrators were entitled to take into account all items of present loss and damage, including depreciation in value or loss of price thereby occasioned, and excluding only so much of such -depreciation in price as is attributable only to fear of future damage resulting from past excavations. Dr. Findlay, in reply, submitted that the directions from his Honour to the arbitrators should be based on three different methods of assessment, each .of which, if properly applied, would give the same money results. The methods he suggested were as follow (a) That the arbitrators should define ai;, far as possible tho condition of the land; immediately prior to defendant's operations, and then determine the condition at the time of action brought, thus ascertaining tho degree _of physical damage. Upon the results obtained tho arbitrators should determine the value in money of :the whole property prior to defendant's operation, also the value in money of the property at tho time of aotion brought, on the assumption that no further damage would result from defendant's operations. (2) That the arbitrators should first ascertain the extent' of the slips caused by defendant's operations, which inquiry would involve ascertaining the physical changes tbat\ have taken place, and determine the money lost to the owner for all practical purposes of user, including tho amenities. (3) That- the arbitra-tors-should ascertain what' sum, if spent upon tho'land with defendant's wall.present, would make the market price of the property equal to what it was before defendant's operations. Counsel asked His Honour to direct tho arbitrators that under the by-laws another house could not be erected on the property, because there was not a frontage for it to Boulcoit Terraco. It was possible that the arbitrators might proceed on tho assumption that a cer-tain-sum of money was required to restore the face of the bank to a condition of safety. They should, he submitted, be directed to state whether they had made such an allowance, and tho amount of the sum. If a sum allowed for that purpose, and .further da/nago occurred, which would have been avoided ,if the money had bee/i expended, dofondant ought not to be made liable for that damage. His Honour said lie would give his directions in writing to the arbitrators during the week. 1

RIVAL SCAFFOLDING BRACKETS. ALLEGED INFRINGEMENT OF A PATENT. , Tho hearing of a case between the Humphries Patent Bracket and Scaffold Co., Ltd.j v. Butters, Hale and Company, was commenced before Mr. Justice Cooper yesterday. , / ' Mr. Skerrett, K.C. (with him Mr. Peacock), appeared on behalf of plaintiffs,' and Mr. Young , for the defendants. - / According to the statement of claim, letters patent were on August 10, 1905, granted to Geo. Ed. Humphries, building contractor, Wellington, for an invention entjtled, "An Improved Scaffolding Bracket." By. virtue of a deed of assignment, dated May 25, 1907, _ Humphries assigned his interest in the invention and in the letters patent, except so far as tho districts of Otago and Southland were concerned, to the plain-tiff-company. It was alleged that defendants had, mado, or caused to be used at Napier brackets similar to, and (if at all) only colourably differing from plaintiffs' invention. The brackets made by defendants comprised a metal frame, which in uso was approximately triangular in shape, and had a horizontal member (upon wtiich the scaffolding planks rest), so constructed as to form a socket at its end, and which engaged over a hook formed upon a screw bolt screwed into the* building. Tho wholo construction and method of using tho bracket was, it was alleged, an imitation of'plaintiff's bracket. It was further asserted that defendants had made and sold brackets infringing plaintiffs' letters patent. . Wherefore plaintiffs claimed an injunction to restrain defendants from manufacturing, using, selling, and exposing lor, sale any brackets in infringement of their patent, the sum of £500 as damages, or at tho option of plaintiffs an account for tho procoeds of all brackets infringing their patent sold by defendants, and delivery up to. the plaintiffs or destruction of all brackets Lrf?®? i tlleir P atent in tho possession of defendants. Js a defence to the action, defendants, besides denying that they in/ringed plaintilts, patent, relied on a number of obiecdSw' 1 ' V^' d,ty ' They asserted plaintiffs invention was not new at the date ot the invention, but had been anticipated by .an iron bracket constructed by J. H Fairhurst, formerly of Worser Bay, but now of i evirke, and used by him in 1902, 1903 and 1904, bv an iron bracket commonly used lßOoff n ß Q^ son > , b " ilde A. Wellington, from leJa to 1890, and by the ordinary wooden bracket in universal use by builders It was alleged that plaintiffs' invention was not a proper subject matter of a letters patent,- and that tho specifications filed in support of tho invention were insufficient ambiguous, and framed so as to mislead. Defendant also denied that plaintiffs' invention was of any public utility. The invention, it was further stated, was previous to th» date of the issue of the patent published in specifications filed in the' Patent Office on February 23, 1903, by J. 11. Fairhurst, dnd also in a book known as "Thatcher on Scaffolding." Mr. Skerrett, on behalf of tho plaintiffs, said it was proposed • to ask the Court to refer the question as to the amount of damages sustained to the Registrar of the Court. Plaintiffs had evidence in regard to only two infringements. - Ho would call witnesses to prove the novelty and utility of the invention, and leave it to defendants to attack the validity of the patent if that could be done. The invention patented by Fairhurst had never come into general use. Humphries had been fortunate in hitting upon an attachment which had boon found in practice to be an undoubted succc-ss. It had been patented in nearly every part of tho world. The bracket sold by defendants was alleged to bo only a colourable evasion of pf... '':(Fs' bracket. No one could suggest that there was any novelty in the shape or form of the bracket itself. What Humphries .had discovered, however, was a combination of a hook and eve attachment which rendered brackets of the kind quite safe. 1 All that defendants had done was simply to transpose the hook and eye, attachment. Defendants could not take the essence and substance of -Stiffs' bracket and add to it something

that was not material to their invention and which in itself was not now. Tho main points of reeemblnncc between the two brackets woro (1) that both were designed to hang upon a building by a single screw, and (Z) that each had a flat hook with correspondingly shaped eyo; (3) both contained provisions for preventing side swinging. Evidence on behalf of plaintiffs was Riven by Percy Pickering, carpenter and builder; Wm. Cable, ironfottndcr; A. J. "J!, 1 builder; Hugh Hutchinson, ironfounder ; M m. Crabtree, mechanical engineer and lronfounder; Walter L. Thompson, builder and contractor ; John Matthews, builder; A. flFulford, plastering contractor; James Craig, builder; W. J. Ferkins, building .contractor; Clias. Hedderwick, mnator pamter; Ji. S. Baldwin, patent agent; Jas. MarchbanKs, formerly with the Manawatu Rai way Company; and J. W. Chapman Taylor, arclutCAt this stage the Court adjourned until this morning.

MAGISTRATE'S COURT,

POLICE CASES. (Before Mr. W. G. Riddell, S.M.) IDLE AND DISORDERLY. A young woman, Elizabeth Black, a 'i as Freeman, pleaded guilty to a charge of being an idle and disorderly person within the meaning of the Polico Offences Act 1908, m that she has insufficient lawful means of supP °Station-Sergeant Darby informed the Court that accused had been living in Forester s Lane, and in consequence of trouble on the premises the police were called on to eject her. Sho had several previous convictions against her name, and had done no work since she last came out of gaol. His Worship entered a conviction and sentence of threo months' imprisonment with hard labour. CONCERNING A GARDEN HOSE. Wm. Hig"inson, a man past middle age, pleaded not°guilty to a charge of having on March 2, at Wellington, committed thett of a garden hose, valued at £2, the property of somo person or persons unknown. Station-Sergeant Darby stated that accused had only been arrested on Tuesday, and the police had- been unable to trace the owner of the hose. , A remand to Wednesday next was granted. INSOBRIETY. One first offender for drunkenness,- who failed to appear, was fined 10s., and two others wore eacli convicted and discharged.

CIVIL BUSINESS.

(Before Dr. A. M'Arthur, S.M.) POSSESSION OF A HORSE. WmJHenry Hook, engineer, sued Henry Arthur Gold, accountant, trusteee m the assigned estate of Louis Henry Hook, formerly a storekeeper in "Wellington, for possession of a horse, valued at £20, and £10 damages for alleged detention.- Tho caso was before the Court in January last, eventually going to the Supremo Court, where plaintiff was nonsuited. .'en. Defendant contends that at the time of the execution of the deed of assignment by Louis Hook the horse was in tho assignor s possession, and therefore formed part of his estate. After a partial hearing, the case was adjourned until Friday morning. Mr. C. W. Nielsen appeared for defendant, and Mr. P. W. Jackson for plaintiff.